Rarely Used Provision of State Law Could Determine the Winner of NC’s Governor’s Race

It has been a week since Donald Trump and almost every Republican running for office in North Carolina swept the state. For the GOP, it solidified their hold over the state House and Senate.

Even the very unpopular Senator Richard Burr vanquished his opponent, Deborah Ross, with relative ease.

The one completely awful, exceedingly suspicious (and disturbing) anomaly in this Republican wave was Governor Pat McCrory, the über-successful, one-term governor, seeking his second term.

Governor McCrory, while making some of the most savvy and effective fiscal moves in the nation, cancelled nearly $3 billion in debt to the federal government, built up a hefty surplus, slashed taxes, and put North Carolina near the top of the nation’s rankings for job competitiveness.

The state’s fiscal growth outpaced that of even Texas!

It was his stance on social issues that made McCrory a target. His restrictions on abortion, then his signing of a bathroom bill that restricted bathroom access to the sex one was born into was too much for social justice warriors across the nation to bear.

Activists from California, New York, Oregon, and elsewhere descended on the state in the days leading up to the election, in an effort to get out the vote for his opponent, Attorney General Roy Cooper.

On election night, McCrory began by lagging behind Cooper, but as other Republicans saw their numbers rise, so did McCrory. He was riding the wave.

McCrory had pulled ahead by a bit over 52,000 votes by the end of the night, but then, in the closing moments, Durham County – a deep blue pocket of the state – announced that they’d “found” over 90,000 votes that they’d forgot to count, which put Cooper over McCrory by 3,000 to 5,000 votes.

Cooper and state Democrats quickly claimed victory, but Governor McCrory refused to roll over, and announced that they would contest the results, by a recanvassing of votes, and consideration of all provisional ballots.

You’ve got to admit, nothing about a county suddenly “finding” more than 90,000 uncounted votes, at the very end of the night, sounds normal.

Since last Tuesday, there have been multiple reports of irregularities at North Carolina’s polls.

People have reported being turned away from the polls (even as we find that in Durham, where all the trouble began, held the polls open for an extra hour, due to what they said were malfunctions with the voting equipment). People have reported showing up at their voting places, only to be told that someone had already voted in their name (activist judges with the 4th Circuit Court of Appeals tossed out the state’s voter ID law weeks before the election).

It’s a struggle, and as of now, the state is no closer to naming a winner for the governor’s seat than it was on election day.

With that in mind, a rarely used provision in state law may put the decision into the hands of the state’s General Assembly.

The question now becomes whether the same process, created by a legislature controlled by Democrats, could be used to put the governor’s race in the hands of Republican lawmakers.

“You’ve got to have some legitimate grounds for saying you actually won the race,” former state Supreme Court Justice Bob Orr said Monday when asked if McCrory had a path to make such an appeal.

But the short answer, Orr said, was “yes,” albeit a qualified one.

For starters, the process playing out at this time, with the boards of election in each county, as well as the state’s board of election must go through. If they can reach a conclusion that satisfies both McCrory and Cooper, then there is no need to go further.

A Durham attorney has filed a complaint regarding the handling of the votes by Durham County and will stand before the Durham County Board of Elections on Wednesday, in order to voice his formal argument.

Barring a successful resolution of the issues with Durham County, the decision is kicked to the North Carolina General Assembly, as mapped out in the state’s Constitution.

“A contested election for any office established by Article III of this Constitution shall be determined by joint ballot of both houses of the General Assembly in the manner prescribed by law,” reads a constitutional provision first drafted in 1835 when voters were given the right to choose the governor directly. Some semblance of that provision has remained through two other drafts of the constitution, the most recent one laid down in 1971.

In the 2004 case, the question was if it were proper to count votes that had been placed somewhere other than the voter’s actual precinct. There was also an issue with Carteret County’s vote, due to a machine malfunction that lost 4,500 votes.

In this current case, it’s not lost votes, but found votes, as it were, and if the votes were counted correctly.

Like Orr, Cohen said the question may come down to what the meaning of “contested” is in the constitutional provision and how widely lawmakers are willing to interpret it.

Orr noted that the legislature essentially built its process for settling the election on the fly. The constitutional provision allowing the General Assembly to settle Council of State contests took many by surprise in 2004, and lawmakers had to build an entirely new structure to hear Atkinson’s case.

In his 2007 article, Joyce argued that future lawmakers could be inclined to use their power for partisan advantage, and he raised questions over whether their decisions could be appealed to the courts. Those questions have not been answered in the meantime.

Joyce said Monday that in addition to the constitutional provision, lawmakers in 2004 crafted a state law giving those in Council of State races a right to appeal to lawmakers after a final decision had been made by the State Board of Elections.

“This is all new ground,” he said, noting that the Atkinson case was the only time in more than 100 years the provision had ever been triggered. Asked whether the General Assembly would have any limits on deciding whether to take up a case or how to handle it based on how people voted, Joyce said, “The short answer to your question is I don’t know.”

On the night of the election, Governor McCrory stated that we may have an answer as early as November 18, but with that date only a few days away, the state seems no closer to coming to a final decision.